Explanatory Statement
Civil Aviation Act 1988
Civil Aviation Order 82.6 Amendment Order (No. 3) 2008
Background
Night vision goggles (NVG) are a head mounted night vision enhancement device. They use image intensifying technology to amplify the available ambient light sufficiently for images to be seen through the NVG eyepieces as a monochromatic green image.
NVG technology evolved mainly in advanced military forces, including in Australia. In certain strictly controlled circumstances, the use of NVG can enhance crew situational awareness and decrease operational risk under night visual flight rules (NVFR). As a result of helicopter industry interest, and overseas developments, in the use of NVG for civilian helicopter operations, CASA established an assessment trial to facilitate the use of NVG in certain public interest helicopter operations.
Civil Aviation Order 82.6 (CAO 82.6) supported the trial by providing for operational and airworthiness standards and approval requirements for the use of NVG in specialised helicopter aerial work operations, namely, search and rescue, law enforcement, aerial fire fighting, aerial fire fighting support, emergency medical services, marine pilot transfers, training for any of these, and demonstration and positioning flights.
Instrument CASA 288/07 also supported the trial by directing that night vision devices must not be used in private operations as the primary means of terrain avoidance for safe air navigation by means of visual surface reference external to an aircraft.
Thus together, CAO 82.6 and the Direction make unlawful any non-approved use of NVG as a primary means of terrain avoidance when using external visual surface reference.
Background to the CAO amendment
As part of the process of making it, CAO 82.6 was contained in Schedule 1 of Civil Aviation Order 82.6 Instrument 2007 (the making Instrument).
That making Instrument, and hence CAO 82.6 itself, was expressed to expire, initially on 30 June 2008, and then by extension on 31 January 2009 (Civil Aviation Order 82.6 Amendment Order (No. 1) 2008).
This expiry date was part of the process of managing the CASA-sponsored trial of night vision goggles with certain specialised helicopter operators under CAO 82.6. The purpose of the trial was to assess the safety and effectiveness of NVG technology in the operations, and the relevance and appropriateness of the safety rules in CAO 82.6.
Initially, the trial was to end on 30 June 2008, but was extended by CASA until 31 December 2008.
For the purposes of the NVG trial, CASA established the joint CASA/industry NVG Trial Monitoring and Evaluation Group (the Group). The Group was comprehensively representative of the relevant helicopter industry involved with NVG, and was established by CASA to oversee various aspects of the NVG trial. An important part of its role was to suggest for consideration amendments to CAO 82.6 to ensure that the trial was as effective and as safe as possible so that it could be relied upon to guide future developments in the use of NVG.
The Group met in Hobart on 19-20 November 2008, and the consensus of opinion among both CASA and industry representatives was that the trial was a success and was moving towards a successful conclusion. Further amendments to CAO 82.6 were suggested by the Group and these were under active consideration by CASA for future amendments to CAO 82.6.
In the meantime, in early December 2008, CASA concluded that the trial of NVG in the specific specialised helicopter aerial work operations had been successful and the expiry date on CAO 82.6 should be removed.
The CAO amendment therefore removes the 31 January 2009 expiry date (and a related Note) from the making Instrument, and hence CAO 82.6 will not expire.
By the registration of the CAO amendment before 31 January 2009, there is no break in the continuity of CAO 82.6 or in the various approvals and instruments issued under it.
There is no change to the CASA direction (CASA 288/07) that night vision devices must not be used in private operations as the primary means of terrain avoidance when using external visual surface reference.
The CAO amendment
Details of the CAO amendment are set out in Attachment A.
Legislation
The legislative basis for the CAO amendment is set out in Attachment B.
Legislative Instruments Act 2003 (the LIA)
CAO 82.6, and amendments to it, take effect as conditions on Air Operator Certificates (AOCs).
Paragraph 28BA (1) (b) of the Act provides that an AOC has effect subject to any conditions “specified in the regulations or Civil Aviation Orders”.
Subsection 98 (4A) of the Act provides that CASA may issue CAOs with respect to any matter in relation to which regulations may be made for the purposes of section 28BA. Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) is stated to be a legislative instrument and is, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
By providing that an AOC has effect subject to any conditions specified in CAOs, paragraph 28BA (1) (b) also empowers the making of relevant CAOs. For section 5 of the LIA, a CAO imposing conditions on AOCs is legislative in character and, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
The CAO amendment is made under both paragraph 28BA (1) (b) of the Act and subsection 98 (4A) of the Act and is a legislative instrument.
Consultation
Specific consultation under section 17 of the LIA has not been undertaken in this case. The CASA/Industry NVG Trial Monitoring Group, which last met on 19-20 November 2008, was aware CASA was actively considering removal of the expiry date from CAO 82.6. This was because the NVG trial was generally considered to be successful, and although the Group recommended further amendments to CAO 82.6, these were not such as would affect CASA’s decision to place CAO 82.6 on a more enduring footing.
Regulation Impact Statement
OBPR does not require a RIS for the CAO amendment because a preliminary assessment of the business compliance costs indicates that the CAO amendment will have only a nil to low impact on business.
Commencement and making
The instrument comes into effect on the day after it is registered.
The instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Civil Aviation Order 82.6 Amendment Order (No. 3) 2008]
Attachment A
Details of the CAO amendment
Section 1 of the CAO amendment states that the amendment is the Civil Aviation Order 82.6 Amendment Order (No. 3) 2008.
Section 2 of the CAO amendment provides that it commences on the day after it is registered.
Section 3 of the CAO amendment provides that Schedule 1 amends Civil Aviation Order 82.6 Instrument 2007 (the making Instrument).
Schedule 1 of the CAO amendment substitutes for section 2 of the making Instrument a new section. This preserves the original registration of the Instrument, formerly paragraph 2 (a), but omits paragraph 2 (b) and a related Note. Paragraph 2 (b) had stated that the making Instrument “stops having effect at the end of 31 January 2009”. The Note had stated that the temporary nature of CAO 82.6 was to facilitate a controlled trial of night vision goggles by approved operators. The removal of paragraph 2 (b) (and the Note) is to take effect through registration of the CAO amendment before 31 January 2009, and, therefore, there is no break in the continuity of CAO 82.6.
Attachment B
Legislative basis for CAO amendment
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
CAR 1988
Under subregulation 5 (1) of the Civil Aviation Regulations 1988 (CAR 1988), where CASA is empowered to issue certain instruments, it may do so in a CAO.
Under subregulation 157 (1) of CAR 1988, the pilot in command of an aircraft must not fly over a city, town or populous area at a height lower than 1 000 feet, or over any area at a height lower than 500 feet.
Under subregulation 174B (1) of CAR 1988, except for take-off and landing, the pilot in command of an aircraft must not fly it at night under the visual flight rules (V.F.R.) at a height of less than 1 000 feet above the highest obstacle within 10 miles.
Under subregulation 195 (1) of CAR 1988, at night and in conditions of poor visibility, the operator and pilot in command of an aircraft must comply with the rules in Part 13 of CAR 1988 about the lights to be displayed for the aircraft.
Under subregulation 207 (2) of CAR 1988, a person must not use an Australian aircraft in a class of operation if the aircraft is not fitted with the instruments and equipment approved and directed by CASA. In approving or directing, CASA may have regard only to the safety of air navigation.
Under subregulation 215 (3) of CAR 1988, CASA may give directions requiring an operator to include, revise or vary information, procedures or instructions in the operations manual (operating procedures).
Under subregulations 217 (1) and (3) of CAR 1988, CASA may specify operators who must provide an approved training and checking organisation (a TCO) to ensure that members of the operator’s operating crews maintain their competency.
Under subregulation 308 (1) of CAR 1988, in relation to particular aircraft or categories of aircraft, CASA may exempt the aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988. Under subregulation 308 (2), before making an exemption, CASA must take relevant safety considerations into account. Under subregulation 308 (3), CASA may make an exemption subject to necessary safety conditions.
Under section 27 of the Act, CASA may issue Air Operators’ Certificates (AOCs) for its functions. Under subsections 27 (2) and (9) of the Act, an aircraft operator must hold an AOC in order to operate for certain prescribed purposes. Paragraph 206 (1) (a) of CAR 1988, prescribes aerial work purposes of various kinds, including aerial spotting, flying training, ambulance functions, and purposes that are substantially similar to these. Substantially similar purposes are generally taken to include search and rescue, law enforcement, aerial fire fighting and marine pilot transfers.
The heads of power for making relevant CAOs are twofold. Under paragraph 28BA (1) (b) of the Act, an AOC has effect subject to, among other things, conditions specified in Civil Aviation Orders (CAOs). For section 5 of the Legislative Instruments Act 2003, CAOs imposing conditions on AOCs would be legislative instruments.
Under subsection 98 (4A) of the Act, CASA may issue CAOs not inconsistent with the Act or the Regulations, and not prescribing any pecuniary penalty, with respect to any matter in relation to which regulations may be made for the purposes of, among other things, section 28BA of the Act. Under subsection 98 (4B) of the Act, a CAO issued under subsection 98 (4A) of the Act is a legislative instrument.